November 11, 2011

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The Justice Department is refusing to release a key legal opinion governing the use of "exigent letters," a mechanism the FBI uses to request information including telephone company records.

In court filings Thursday night, the Obama administration said it would not release the January 2010 Office of Legal Counsel memo because portions of it are classified and because disclosing any part of the memo would damage the deliberative process and infringe on the attorney-client relationship.

Acting in response to a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation, DOJ lawyers filed declarations from FBI FOIA official David Hardy about the national security harm that would allegedly flow from release (for now, too large to post) and OLC attorney Paul Colborn about the legal confidentiality concerns (posted here).

"The information in the January 8, 2010 OLC memo concerning [intelligence] activities and methods is highly specific in nature and known to very few individuals," said Hardy.

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